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Health-Care Whistleblowers Look to Leverage DOJ Partnership

Attorneys representing whistleblowers should establish strong relationships with DOJ’s
affirmative civil enforcement coordinators if their cases are to stand out, and attract
DOJ intervention, among the growing number of False Claims Act lawsuits filed every
year.

Affirmative civil enforcement (ACE) coordinators are assistant U.S. attorneys tasked
with handling False Claims Act lawsuits filed in their judicial district by an FCA
whistleblower. Knowing the priorities and needs of a particular ACE coordinator or
coordinators in a U.S. Attorney’s Office’s Civil Division will enable whistleblowers’
counsel to present their client’s FCA case in the best possible light to DOJ prosecutors.
This is important because FCA whistleblower cases alleging health-care fraud have
a far greater chance of reaching either a settlement or judgment against a defendant
if the DOJ intervenes in the lawsuit and takes over prosecution.

ACE coordinators are looking for well-thought-out FCA complaints, “adequate support
for the legal theory” of the alleged fraud, and whistleblowers who are well placed
in a defendant company, according to R. Scott Oswald, a whistleblower attorney and
managing principal of The Employment Law Group in Washington. Oswald is also vice
chair of the Federal Bar Association’s Qui Tam Section, and will be moderating a panel
with three ACE coordinators at the association’s 2018
Qui Tam Conference in Washington Feb. 27.

Renee Brooker, counsel at Finch McCranie LLP in Washington, told Bloomberg Law that
the relationship between whistleblower counsel and ACE coordinators is a “partnership,”
and the coordinators want “strong partnerships with [counsel] who bring strong cases.”

Oswald said every ACE coordinator’s department operates differently, with some having
larger case loads, multiple coordinators, and their own investigative staff, while
others might have few or no staff, and handle FCA matters only infrequently. An important
consideration for whistleblowers, and the DOJ, is deciding in which USAO district
to file an FCA case, as different districts are bound by different prevailing FCA
rulings on issues like pleading standards and materiality.

Where to File

Eva Gunasekera, also counsel at Finch McCranie LLP in Washington, said deciding where
to file an FCA case is very much a “strategic consideration"—for a whistleblower and
for the DOJ. The FCA has a “broad venue provision,” Oswald noted, and it “may be advisable
to file in certain districts,” depending on the prevailing FCA law in a particular
district.

ACE coordinators are also responsible for interfacing with state attorney general
offices and state Medicaid fraud units, which sometimes have more resources to investigate
allegations of health-care fraud than a USAO, Gunasekera said.

Looking for a ‘Hook’

Some USAOs market themselves to whistleblower attorneys, hoping to entice FCA filings
in their own districts, said Brooker, a former assistant director in the DOJ’s civil
fraud division. Brooker told Bloomberg Law that ACE coordinators can reach out to
whistleblower attorneys at bar association meetings, and some new U.S. attorneys might
invite prominent whistleblower counsel from their districts to meet in the U.S. attorney’s
office if FCA enforcement is a priority.

But all ACE coordinators are looking for a “hook” to their district, Brooker said,
when a false claims case is brought to their USAO, especially in districts that see
a slew of filings like those in federal courts in Florida and Massachusetts. ACE coordinators
in these districts “have their pick of the litter” in choosing FCA cases to invest
resources in, according to Brooker, and are looking for cases that directly affect
their district, have patient harm, and contain allegations involving high dollar amounts.

Brooker noted that the U.S. attorney and the presidential administration at the helm
of the DOJ set the tone for enforcement priorities at individual USAOs, and there
has been a shift more toward more criminal enforcement during the Trump administration.
The Obama administration emphasized civil enforcement, Brooker said, but for the Trump
administration, “all the publicity is on criminal” enforcement.

Whistleblowers Driving DOJ

Gunasekera said, though, that ACE coordinators are largely reacting to what FCA cases
are filed in their districts. Whistleblowers “can drive the subject matter focus [at
a USAO] depending on what [whistleblowers] are bringing to them,” Gunasekera said.

Brooker agreed, noting that the ACE coordinators are “spending 98 percent of their
time investigating qui tam” cases, rather than those originating from the DOJ’s own
investigations. Brooker said big settlements against one type of health-care entity
or area can bring out more whistleblowers with similar allegations of fraud, and it’s
possible that the criminal focus on the opioid crisis could “spill over” to civil
enforcement as well.

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